Modern Estate Planning and the Validity of Electronic Wills

The Ontario court’s decision in Gebremariam v. Menghesha, 2026 ONSC 545, clarifies the interaction between the Succession Law Reform Act (“SLRA”) and the Electronic Commerce Act, 2000 (“ECA”) in light of the realities of modern-day estate planning. The court was faced with a fundamental question: can a court validate an electronic will or does the law demand paper and ink?

The deceased, Nabute Ghebrehiwet (“Nabute”), passed away in 2022.  Prior to his death, Nabute sent an email to several recipients, including his sister, Hanna Gebremariam (“Hanna”), which attached an electronic document titled “Nabute’s Will.” The electronic document was entirely type-written, unwitnessed, and without a signature. It made specific charitable gifts and left the residue of Nabute’s estate to Hanna.

Hanna applied to the court seeking to validate the electronic document under section 21.1; the issue on the motion was whether it was open for her to do so. Section 21.1 is a curative provision which allows the validation of documents that were not properly executed or made under the SLRA where the court is satisfied that the document sets out the testamentary intentions of a deceased.

Nabute’s mother, Letekidan Menghesha (“Letekidan”), opposed the motion; she would be the sole heir if the application failed. Relying in part on the Hansard record of debates leading up to the enactment of section 21.1 and the marginal notes to the SLRA, Letekidan argued that the court’s discretion does not extend to validation of an electronic document.

The Honourable Madam Justice Sylvia Corthorn concluded that first, a person may submit an electronic document to be validated under s.21.1, and second, that it is open to a court to validate such a document provided it meets the requirements under that section of the SLRA.

In applying the modern principles of statutory interpretation, the court acknowledged the limited role of marginal notes and that the SLRA did not define “document” or “writing”.

Turning to the ECA, the court found that the Functional Equivalency Rules in sections 4-12, which exclude wills, are “framed in the context of the creation, not the validation, of electronic documents…” that would otherwise be invalid. Thus, the court held that the exclusion of wills from section 4-12 of the ECA did not preclude the validation of electronic documents under section 21.1 of the SLRA.

The court the distinguished earlier case law, which appeared to close the door on electronic wills, finding it insufficiently reasoned to establish such a prohibition:

• White v. White, 2023 ONSC 7286: The specific question of whether a digital file constitutes a document or writing was not before the judge in this case. The Court thus found that the comments regarding electronic documents in this decision were obiter dicta.
• Allison v. McBride, 2025 ONSC 2828: In this case, the document failed because it lacked a fixed and final intention. The Court found that the reasoning focused on the substance of the intent rather than the medium of the document.
• Madhani v. Fast, 2025 ONSC 4100: This case did not involve a “…contested application or motion for which the moving party relies on an electronic document for the purpose of s. 21.1.”

While the court acknowledged the evidentiary challenges in authenticating electronic documents, it concluded that absent a prohibition against validation of an electronic document, the existence of such evidentiary challenges was not relevant to the extent of the court’s discretion to validate a document under section 21.1. It confirmed that the provision is remedial in nature, intended to overcome the hardship of imperfect compliance in the making of a will in Ontario. The court therefore allowed the application to proceed, subject to meeting the evidentiary requirements under section 21.1 of the SLRA.

This decision indicates that the medium of a will is no longer an absolute bar. Of course, evidentiary challenges of proving that the digital file is not only authentic but was intended to be a final will rather than a mere draft, remain. Such cases are highly fact-driven and require careful analysis.

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